State v. Despres

220 Conn.App. 612

300 A.3d 637

STATE of Connecticut

v.Mark J. DESPRES

AC 45614

Appellate Court of Connecticut.

Argued April 10, 2023

Officially Released July 25, 2023

Mark J. Despres, self-represented, the appellant (defendant).

Linda F. Rubertone, senior assistant state's attorney, with whom, on the brief, was Paul Narducci, state's attorney, for the appellee (state).

Bright, C. J., and Suarez and Seeley, Js.

SEELEY, J.

The self-represented defendant, Mark J. Despres, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22.¹ On appeal, the defendant claims that the court improperly concluded that it lacked jurisdiction to hear his motion. Specifically, the defendant argues that the court improperly determined that his claims regarding the sentencing court's denial of his motion to represent himself at that proceeding and his attorney's failure to turn over documents did not fall within the ambit of Practice Book § 43-22. We agree with the defendant that the trial court improperly concluded that it lacked jurisdiction with respect to his claim regarding the denial of his request for self-representation and disagree with respect to his claim regarding his attorney's failure to turn over the aforementioned documents. Accordingly, we affirm in part and reverse in part the judgment of the court.

The following facts, either as set forth by this court in a prior appeal or as undisputed in the record, and procedural history are relevant to our resolution of this appeal. On March 10, 1994, the defendant shot and killed Anson B. Clinton III, as part of a conspiracy with Beth Ann Carpenter and Haiman Long Clein. The defendant was charged with capital felony murder, murder, and conspiracy to commit murder. On March 25, 1996, Attorney Michael Fitzpatrick was appointed as counsel for the defendant. In May, 1997, the defendant entered into an agreement with the state to plead guilty to murder and conspiracy to commit murder. As part of the plea agreement, the defendant agreed to cooperate fully with

the state, including by "testifying truthfully in any subsequent trial or hearing arising from the death of ... Clinton ...." The state agreed not to prosecute the capital felony murder charge and to recommend a sentence of forty-five years of incarceration, while allowing the defendant the right to argue for a lesser sentence.

The defendant subsequently filed multiple motions to withdraw his guilty plea between 1997 and 2002. The defendant refused to testify at Carpenter's trial when she was prosecuted for her role in Clinton's death. Despres v. Commissioner of Correction , 166 Conn. App. 572, 577, 142 A.3d 400, cert. denied, 323 Conn. 916, 149 A.3d 498 (2016). As a result, on April 22, 2002, the prosecutor notified the defendant that he had violated the terms of the plea agreement. On June 28, 2002, the defendant filed a motion to dismiss Fitzpatrick and to represent himself in anticipation of the upcoming sentencing hearing. At the bottom of the motion, the defendant wrote: "Can I please get an appearance form to file to take my case over? Also can you please send me the next court date for this motion ...." On July 2, 2002, Fitzpatrick filed a motion to withdraw.

On September 12, 2002, Fitzpatrick withdrew his motion, and the court, Clifford, J. , denied the defendant's motion to represent himself. During that hearing, Judge Clifford asked the defendant: "Are you asking to represent yourself at the sentencing hearing?" The defendant replied, "[y]es." The court did not canvass the defendant² regarding his invocation of the right of

self-representation but, rather, stated: "I don't know if it really matters whether you represent yourself or [whether] you have an attorney because the attorney can address me and, you know, have me consider any information and so can you. So, it really doesn't make a difference."

In ruling on the motion, the court stated: "I'm going to deny your request to have ... Fitzpatrick ... fired at this point and to represent yourself because basically at the time of sentencing, you can—as I said, you can indicate to me anything you want. It's almost as if you're representing yourself anyway because that's what a sentencing is."

During that same hearing, the defendant also raised with the court a separate issue regarding documents that he alleged Fitzpatrick had failed to turn over to him, including a statement given by Clein as part of Clein's plea agreement. In response, Fitzpatrick stated to the court that his law firm had given the defendant a copy of the relevant documents, which subsequently were lost. Fitzpatrick stated that he also gave the defendant a second, complete set of the documents. Fitzpatrick acknowledged, however, that he had not specifically handed over a copy of Clein's statement, and he agreed to do so.

Sometime after Judge Clifford had denied his motion for self-representation, the defendant hired Attorney Jon Schoenhorn to resurrect the plea agreement and to represent him at his sentencing hearing, which Schoenhorn did. See Despres v. Commissioner of Correction , supra, 166 Conn. App. at 577–78, 142 A.3d 400. On December 4, 2003, Judge Clifford sentenced the defendant to forty-five years of incarceration, in part, because of the defendant's refusal to adhere to his plea agreement and to cooperate with the state during Carpenter's trial. See id., at 578, 142 A.3d 400.

On July 22, 2021, the defendant filed a motion to correct an illegal sentence.³ He argued in his motion that the sentence imposed by Judge Clifford was illegal under Practice Book § 43-22. Specifically, the defendant claimed that imposing the sentence after denying his motion to represent himself resulted in an illegal sentence. The defendant further argued that the sentence was illegal because of Fitzpatrick's alleged failure to provide the defendant with certain documents related to his defense. The state filed its objection to the defendant's motion to correct an illegal sentence on August 12, 2021, in which it argued that the court lacked jurisdiction to hear the defendant's motion because the defendant's claims did not attack the sentencing proceeding itself but, rather, related to his frustrations with his attorney and the fact that he had not been permitted by the court to represent himself at the sentencing hearing. The state further argued that, even if the court determined that it did have jurisdiction, the motion should be denied because the defendant had not established that his rights were violated.

After hearing from both parties on May 4, 2022, the court, Strackbein, J. , subsequently issued a memorandum of decision. The court concluded that the defendant's claim did not attack the sentencing proceeding itself and, accordingly, dismissed the defendant's motion for lack of jurisdiction. In its memorandum of decision, the court agreed with the state's assertion that the defendant's claim "does not attack the sentencing proceeding, but rather his dissatisfaction with counsel and the trial court's refusal [to] allow him to proceed [as a self-represented defendant] at sentencing." The court, however, went on to address the merits of the claim raised and concluded that, if this court were to determine on appeal that there was jurisdiction, then the motion to correct should be denied on the merits because the defendant failed to establish that his underlying sentence was imposed in an illegal manner. This appeal followed.⁴

On appeal, the defendant claims that the court improperly dismissed his motion to correct an illegal sentence.⁵ Specifically, he argues that he raised a colorable claim under Practice Book § 43-22 and, therefore, dismissal of this claim for lack of jurisdiction was improper. We agree with the defendant that he raised a colorable claim under § 43-22 with respect to his argument that he was entitled to represent himself at sentencing. We disagree, however, with his argument that

counsel's failure to provide him with copies of certain documents is an appropriate basis under § 43-22 for correcting an illegal sentence.

We begin by setting forth the relevant standard of review and legal principles. "The issue of whether a defendant's claim may be brought by way of a motion to correct an illegal sentence, pursuant to Practice Book § 43-22, involves a determination of the trial court's subject matter jurisdiction and, as such, presents a question of law over which our review is plenary." (Internal quotation marks omitted.) State v. Turner , 214 Conn. App. 584, 589, 280 A.3d 1278 (2022).

"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) State v. McCleese , 333 Conn. 378, 386, 215 A.3d 1154 (2019). "A trial court generally has no authority to modify a sentence but retains limited subject matter jurisdiction to correct an illegal sentence or a sentence imposed in an illegal manner." Id. This common-law rule was codified by Practice Book § 43-22. See State v. Myers , 343 Conn. 447, 459, 274 A.3d 100 (2022).

The issue of whether a trial court has subject matter jurisdiction to correct an illegal sentence rests upon "whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 ...." (Internal quotation marks omitted.) Id. "[T]o raise a colorable claim within the scope of ... § 43-22, the legal claim and factual allegations must demonstrate a possibility that the defendant's claim challenges his or her sentence or sentencing proceedings, not the underlying conviction. The ultimate legal correctness of the claim is not relevant to our jurisdictional analysis." State v. Ward , 341 Conn. 142, 153, 266 A.3d 807 (2021). Put another way, "where a defendant's motion to correct

plausibly [challenges] the defendant's sentence, that claim is colorable, and the court has subject...